The decision to declare English as the only language of record in court in South Africa: a reaction

The role played by language in recognising human rights in court is a critically important matter. If one reads the Constitution with an open mind, and especially Section 6, which deals specifically with language, in conjunction with the corresponding section in the Bill of Rights which deals with the language rights of those involved in litigation, the decision to restrict the documentation of court proceedings to one language, namely English, is evidently in conflict with both the spirit and the letter of the law.

Why is that so?

There are a number of reasons. In the first place, the Constitution gives recognition to the fact that South Africa is not a monolingual or bilingual country, but multilingual. This creates the framework for effective communication in the country as a whole, something which is, likewise, reflected by our country’s coat of arms, !KE E: /XARRA //KE, or “Diverse people unite”. In this motto, the diversity out of which common nationhood has come about is recognised.

Secondly, the Constitution obligates the state to “take practical and positive measures to elevate the status” of the various indigenous languages, which include Afrikaans, and advance their use.

One of these measures is the use of the various languages for official purposes: among other things, as court language. In Section 6, the directive is that the government (national and provincial) must use at least two official languages. This naturally also includes the department of justice and the bench. And these two languages are not determined by the chief justice, or even the minister; rather, the Constitution says, the state must be guided by the “usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned”.

If the chief justice now takes such a decision ex cathedra, nothing will have come of this instruction in the Constitution, because (a) no distinction has been made on the basis of any regional circumstances or the needs and preferences of the citizens of the country as a whole or of different provinces, and (b) only one language, instead of the minimum of two, has been selected.

The question inevitably arises whether the obligation to convert all legal communication to English would have any influence on the ability of many citizens to express themselves efficiently and understand the language of the court (particularly as regards vocabulary), given the fact that English is arguably the third or fourth language of the majority of the population.

The discussion up to this point has centred on the language situation in a particular region, and on the instruction that provision must be made for the use of more than one official language, for example, in a province. If we now turn the spotlight onto individual language abilities, it can doubtlessly be regarded (consistent with Section 9 of the Constitution, namely the Bill of Rights) as a human right that the opportunity should, in all fairness, be given to an individual to express himself or herself in the clearest way possible, and to understand precisely what is being put to him or her in the court situation. Instead of regarding clear, comprehensible communication with all parties concerned as a priority, the instruction applied is to report in a single language, of which the majority of South Africans have but imperfect command. In this way, not only is the right of an individual under Section 9 prejudiced, but the progress of justice is retarded and the objective of a just trial hampered and frustrated.

Numerous situations can be cited where English, and specifically the legal register of English, is a closed book to participants in litigation. The absurdity of the one-language prescription can be illustrated with reference to a case which was recently heard in the southern Cape. An attorney was defending an Afrikaans-speaking client who had decidedly limited proficiency in English. Out of fairness to the client, he presented the plea in Afrikaans to the presiding officer, something which at the time was still acceptable and permissible (it had been drafted before the chief justice’s ex cathedra decision), and it was interpreted into English. At this point, the attorney became aware that the interpretation was not correct, something which could bring about a misrepresentation of his client’s case. He subsequently objected and offered to present the plea viva voce, by way of sight translation, in English, for the sake of his client’s case and of the opposing party. This was not admitted by the magistrate, since the attorney was not a sworn translator. So as to follow procedure, the attorney translated the text phrase by phrase, and the interpreter repeated the words to the court, phrase by phrase. Because it was a waste of precious court time, it was decided to return to the previously “normal” procedure – so that, by way of default, the stipulation of the Constitution, namely “taking into account regional circumstances” (here the fact that Afrikaans is the primary language of a large percentage of the inhabitants of the southern Cape), was tacitly applied. The lesson to be learned from this incident is that the decision compelling monolingualism is more likely to complicate and retard the administration of justice than to simplify it in such circumstances. Simultaneously, it emphasises both the importance of accurate interpreting and the critical role of the use of the first language of participants in court proceedings.

A further important consideration is the fact that large numbers of immigrants from other parts of Africa now live in South Africa. Such immigrants grew up in countries where French or Portuguese are the colonial languages chosen as the official languages (whereas it is English in South Africa) in which court proceedings are conducted. The question arises whether they would be adversely affected by the decision of the chief justice.

While the central problem of language inequality before the law is comparable to the situation regarding English in South Africa, there is a critical difference. While communication with the judicature in their countries of origin used to take place by means of, say, imperfect French, here it has to take place by means of a practically unknown language, English. Regarding the perception of English as so-called world language, it should be noted that even the English spoken in a country such as Nigeria (inter alia, the variety called Pidgin English, spoken across the country) and that spoken in South Africa are often mutually incomprehensible as a result of differences in pronunciation and vocabulary. Therefore, the understanding of English in South African courts is an additional hindrance to people from such countries. The difference between immigrants from elsewhere in Africa and our own citizens is that the use of and preference for our own official languages is recognised by the Constitution, and experts in these languages are available as interpreters, to a certain extent – or would be, if the department of justice were to make provision for regional circumstances and the needs and preferences of citizens living in the areas where court cases are held.

From a scientific perspective, one could take note of the findings of an ex-Nigerian citizen, Sam Usadolo, who has acquired South African citizenship and, after serving for some years as a court interpreter, has obtained a doctoral degree in linguistics at the Nelson Mandela University on the experience of immigrants from elsewhere in Africa in South African courts. His research touched on important issues which also pertain to South African citizens.

His observation is that linguistic human rights, as in the case of other human rights, are of extreme importance to those who are involved, to such an extent that when these rights cannot be guaranteed to those who are linguistically disadvantaged in respect of the use of the predominant official language where they live, they are also deprived of a voice to claim other human rights. The stipulations mentioned in the Bill of Rights, especially those pertaining to the administration of justice, are sacrosanct elements of the democratic basis of the republic. It is, therefore, important that such rights are shown to be applicable in respect of speakers of languages other than English, and by way of extension, speakers of those of immigrant communities in South Africa (compare also Section 9(3) of the Constitution).

The court is regarded as a sensitive social institution, since matters dealt with here may often mean the difference between freedom and incarceration, or, in some countries, between life and death, for the defendant. This fact underlines the need for maximally efficient communication between role players in the courtroom.

Coming to the role of court interpreters, which, as has been shown above, cannot always be guaranteed to do justice to unfettered communication between such role players: what is to be done?

Leaving aside the situation of immigrant communities, a common factor is the situation of South African citizens who have to give account of their role in matters coming before the court in a language other than that in which they are conversant. This situation is practically always formal and abnormal in comparison with everyday communication, and often occurs in an antagonistic environment. It can naturally be exacerbated by an aggressive prosecutor or an unsympathetic presiding officer. Currently, one finds that the media also play a judgmental (and even condemnatory) role, and thus exert pressure on the process of adjudication. It should be noted that it does not pertain only to defendants in a court case, but that witnesses and, in civil cases, also plaintiffs are often subjected to sharp and merciless interrogation. If this happens in one’s own or in a familiar language, it already presents a difficult situation. If, however, one is dependent on a language with which one is not familiar, it can become traumatic. One often expresses oneself, also by means of body language and tone of voice, differently in a first language than in a later-acquired one, and this obviously contributes to the value and authenticity of what is to be considered as evidence.

This matter is addressed by section 35[3(k)] of the Constitution, part of the Bill of Rights, which reads as follows:

Every accused person has a right to a fair trial, which includes the right to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language.

The language proficiency and interpreting ability of a court interpreter, however, if the complexity of the communication in the context of court proceedings is considered, could not be restricted to a basic capability to transfer the thought content of sentences in one language to another language, but set high demands on all factors that determine clear and unambiguous communication in such a sensitive context. The role of the court interpreter, therefore, is extremely important, both as regards a clear understanding of what the judiciary wishes to convey to the person concerned and how the reaction of the non-English-speaking witness or defendant is understood and recorded. What is required is a well balanced level of bi- or multilingualism and understanding of cultural differences by the court interpreter.

Not all interpreters are trained thoroughly enough to comply with these requirements, and the professional training and retraining of court interpreters as a human rights issue should be a high priority to lend credibility to the compliance with a human rights culture in our country.

There are sufficient speakers who can do this important work if the political will is present and training is made available by the government.

Finally, the exact wording of the decision by the chief justice should be regarded in perspective. It reads as follows:

We [should] have everything that is said in a particular case captured in one language that is understood by all the judges – and that language is English.

The point of departure of this decision is that everything that is said should be documented for the sake of its comprehension by the judges. What is not said is that the other role players in court proceedings, whose lives are determined by a judgment, should have the same access to important information, on the basis of which their future will be determined.